Fleming v Sussex Police Force

Factual and Procedural Background

This appeal arises from a protracted and acrimonious dispute between the Plaintiff and the Defendant police force, culminating in a trial before a judge and a civil jury. The trial lasted approximately seven days, resulting in a verdict and an award of damages of £5,025 in favour of the Plaintiff on 2 April 2003 for a major part of his claim. The Plaintiff was not entirely successful, and the appeal concerns the costs order made by the trial judge following detailed written submissions by the parties.

The underlying incident occurred at an airport on 6 January 1999. The Plaintiff was waiting to meet family members returning on a delayed flight when he was approached and subsequently arrested by two police officers. He was detained for nearly six hours at the police station, during which he alleged assault by the officers. The Plaintiff was charged with assaulting the officers and an offence under the Public Order Act; however, the charges were discontinued by the Crown Prosecution Service before trial.

The Plaintiff made a formal complaint about the officers' conduct, which was rejected, prompting him to commence proceedings. His claim included allegations of wrongful arrest, assault, false imprisonment, malicious prosecution, and misfeasance in public office related to the retention and delayed destruction of his DNA sample.

The trial jury found for the Plaintiff on certain allegations of assault and malicious prosecution but rejected the claim for false imprisonment. The claim for misfeasance in public office was struck out by consent before trial. Following the verdict, the trial judge ordered that the Defendant pay the Plaintiff's costs, except for the misfeasance issue where no order as to costs was made.

Legal Issues Presented

1. Whether the costs order made by the trial judge, requiring the Defendant to pay the Plaintiff's costs except on the misfeasance issue, was appropriate.
2. Whether the trial judge erred in principle or misapplied CPR Rule 44.3 in making the costs order, particularly by considering the size of the damages award and the Plaintiff's means.
3. Whether the Plaintiff's arrest was lawful or unlawful for the purposes of the costs order and related findings.
4. Whether issue-based or percentage costs orders should have been made given the mixed success of the Plaintiff in the litigation.

Arguments of the Parties

Appellant's Arguments

• The Defendant argued that the parties were equally successful and unsuccessful, warranting no order or an order that the Defendant pay no more than 50% of the Plaintiff's costs.
• The Plaintiff unreasonably pursued certain allegations, including false imprisonment and exaggerated police violence, which did not succeed at trial.
• Considerable time and costs were wasted on the "identification issue" concerning who initially pointed the Plaintiff out to the officers, unrelated to the successful claims.
• The Plaintiff's conduct through solicitors increased litigation costs by making excessive requests for disclosure and attempting to introduce undisclosed documents.
• The Plaintiff should bear the Defendant's costs on the misfeasance claim and the related strike-out application, as these claims had no real prospect of success.
• The trial judge erred by considering the Plaintiff's means and the size of the damages award in making the costs order, misapplying CPR Rule 44.3.

Respondent's Arguments

• The Plaintiff submitted that he was the overall successful party, having recovered damages and disproved key police allegations, justifying an order that costs follow the event.
• Even if some claims failed, the Plaintiff should recover at least two-thirds of his costs because he succeeded on two of three torts (assault and malicious prosecution).
• The time spent on unsuccessful claims did not significantly extend the trial length, as the issues were intertwined.
• The Plaintiff highlighted police misconduct, including perjury and failure to destroy DNA samples promptly, which justified full costs recovery and aggravated damages.
• The Defendant refused all settlement offers, forcing the Plaintiff to litigate to obtain any compensation.
• The Plaintiff argued that the costs order should ensure he received the full benefit of the jury's damages award, especially given his status as a legally assisted litigant.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Johnsey Estates (1990) Ltd v Secretary of State for the Environment [2001] EWCA Civ 6535	Test for appellate review of costs discretion: error in principle, irrelevant considerations, or perverse conclusion.	The court applied this standard to assess whether the trial judge erred in exercising discretion on costs.
Summit Property Ltd v Pitmans (A Firm) [2001] EWCA Civ 2020	Emphasizes appellate self-restraint in reviewing costs decisions and the judge's superior position in assessing trial nuances.	The court acknowledged the trial judge's better position to assess conduct and costs, leading to deference to his discretion.
AEI Rediffusion Music Ltd v Phonographic Performance Ltd	Clarification that unreasonable conduct is no longer necessary to deprive a party of costs on a particular issue under CPR 44.3.	The court confirmed that issue-based costs orders are discretionary and need not be predicated on misconduct.
Re Elgindata Ltd (No 2) 1 WLR 1207	Working rule on costs prior to CPR emphasizing reasonableness and necessity of issues tried.	The court referenced this to support principles underlying CPR 44.3 and the discretion of judges in costs allocation.

Court's Reasoning and Analysis

The court examined the trial judge's costs order in light of the parties' submissions and applicable legal principles. It acknowledged that the Plaintiff was partially successful, recovering damages for assault and malicious prosecution, but not for false imprisonment. The judge's discretion in costs matters was recognized as broad and deserving of deference, especially given his direct experience of the trial and parties' conduct.

The court rejected the Defendant's argument that the judge erred by considering the Plaintiff's means and the size of the damages award, noting that the judge appeared influenced by principles applicable in family cases, which the court found inapposite in this civil tort context. The rationale for issue-based costs orders is to discourage pursuit of inessential or failing issues, but the court found no discrete issues that significantly prolonged the trial or inflated costs unjustifiably.

The court also found that the judge properly considered the overall conduct of the parties, including the police officers' actions, the Plaintiff's behaviour, and the failure to settle. The judge's view that the officers had falsely accused and arrested the Plaintiff, and that perjury was involved, weighed heavily in favour of awarding full costs to the Plaintiff.

Regarding the misfeasance claim, which was struck out by consent, the judge's order of no costs was deemed reasonable given the circumstances and limited costs involved. The court found no compelling reason to disturb the judge's exercise of discretion on costs.

Holding and Implications

The court DISMISSED THE APPEAL, affirming the trial judge's costs order that the Defendant pay the Plaintiff's costs of the claim, except for the misfeasance issue where no order as to costs was made.

The direct effect is that the Plaintiff recovers his costs in full subject to detailed assessment, reinforcing the principle that costs generally follow the event, especially where the successful party has established core elements of the claim and the unsuccessful issues did not significantly prolong the trial. No new precedent was established, and the court emphasized the importance of judicial discretion and the contextual application of CPR 44.3 principles.